Guss v Commissioner of Taxation & Anor [2015] VSC 259

2 On 26 September 2014 Magistrate Lambden convicted Mr Guss of those charges. She fined him an aggregate of $3,000, with costs of $110.40.

3 By his amended originating motion in this proceeding, Mr Guss seeks judicial review under Order 56 of the Supreme Court (General Civil Procedure) Rules 2005 in respect of both the ruling of 2 December 2013 and the conviction decision of 26 September 2014. The proceeding is within time in relation to both matters. However, no independent ground of review is relied upon in relation to the conviction decision. Rather, Mr Guss contends that, because of an acknowledged breach of s 13 of the Criminal Procedure Act 2009 ("the CPA") - which requires the provision of certain documentary information to an accused at a particular time - the Magistrates' Court had no power to hear and determine the charges on the merits; that, therefore, Mr Guss's application for peremptory dismissal should have been granted; and that, accordingly, the convictions cannot stand.

4 As I will endeavour to explain, I consider that Magistrate Lambden was in substance correct in holding that the relevant breach of s 13 of the CPA did not have the consequences attributed to it by Mr Guss; that, therefore, the Magistrates' Court did have the power to hear and determine the charges; that the plaintiff's challenges to the ruling and to the conviction decision must therefore fail; and that this proceeding falls to be dismissed accordingly.

5 That conclusion makes it unnecessary for me, in these reasons, to deal with certain applications and submissions that have been made by the second defendant, the Commissioner of Taxation ("the Commissioner"), calling for this proceeding to be dismissed, in whole or in part, on specified procedural and discretionary grounds, or to deal with an abortive attempt that was made by Mr Guss in the course of this proceeding to obtain prohibition or an interlocutory injunction against the Magistrates' Court.

6 The plaintiff's argument is a fairly simple one. It is based squarely on s 13 of the CPA. The plaintiff says that the provisions of s 13 are mandatory and that any non-trivial breach of s 13 must lead to the dismissal of the relevant charge or charges.

7 Section 13 of the CPA is as follows:

1. Summons or warrant to be accompanied by charge-sheet and notice when served

A summons to answer to a charge issued under section 12 or 14 or a warrant to arrest issued under section 12, on service or execution on the accused, must be accompanied by -

(a) a copy of the charge-sheet; and

(b) a notice, in the form prescribed by the rules of court, containing -

(i) if the charge is for an indictable offence that may not be heard and determined summarily or the charge-sheet contains a request for a committal proceeding, a summary of Part 4.4; and

(ii) if the charge is for any other indictable offence or a summary offence, a summary of Division 2 of Part 3.2; and

(iii) advice that the accused should seek legal advice and that the accused has the right, if eligible, to legal aid under the Legal Aid Act 1978; and

Section 13 of the CPA contains certain express or implied cross-references, including to s 12. That section deals with the issuing of summonses and of warrants to arrest in the first instance. It provides:

12 Court may issue summons or warrant to arrest

(1) On the filing of a charge-sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of -

(a) a summons to answer to the charge directed to the accused; or

(b) a warrant to arrest in order to compel the attendance of the accused -

unless a notice to appear has been served on the accused under Division 2.

(2) An application under subsection (1)(b) must be made by the informant personally but an application under subsection (1)(a) may be made by the informant or a person on behalf of the informant.

(3) An application under subsection (1) may be made by the applicant in person or by post.

(4) On an application under subsection (1), the registrar must, if satisfied that the charge discloses an offence known to law, issue -

(a) a summons to answer to the charge; or

(b) subject to subsection (5), a warrant to arrest.

(5) A registrar of the Magistrates' Court must not issue in the first instance a warrant to arrest unless satisfied by sworn evidence, whether oral or by affidavit, that -

(a) it is probable that the accused will not answer a summons; or

(b) the accused has absconded, is likely to abscond or is avoiding service of a summons that has been issued; or

(c) a warrant is required or authorised by any other Act or for other good cause.

1. If an accused fails to appear in answer to a summons, sections 80 and 81 provide for the issue of a warrant to arrest the accused. Section 330 provides for the issue of a warrant to arrest a person who has been remanded in custody or granted bail to attend a hearing but fails to attend.
2. Section 29 of the Magistrates' Court Act 1989 enables a magistrate to exercise the powers of a registrar to issue a summons or warrant.

It will be noted that s 12, in turn, refers to the filing of a charge-sheet under s 6. So far as presently relevant, s 6 provides:

6 Commencement of a criminal proceeding in the Magistrates' Court

(a) by filing a charge-sheet containing a charge with a registrar of the Magistrates' Court; or

...

(a) be in writing; and

(b) be signed by the informant personally; and

(c) comply with Schedule 1.

Note

Section 18 requires an informant to nominate an address for service of documents and other details. That information may be included on a charge-sheet.

(4) The informant may include a request for a committal proceeding in a charge-sheet containing a charge for an indictable offence that may be heard and determined summarily.

8 Section 6, in turn, needs to be read with s 5, which deals with the available methods of commencing a criminal proceeding. Section 5 provides:

(a) filing or signing a charge-sheet in accordance with section 6; or

(b) filing a direct indictment in accordance with section 159; or

(c) a direction under section 415 that a person be tried for perjury.

Note

A proceeding may also be commenced under section 83AL of the Sentencing Act 1991

The nature and circumstances of the breach of s 13

9 The following account of relevant events is based on affidavit material filed by the parties that is not substantially in dispute.

10 On 19 July 2013 a prosecution officer of the Commissioner, Mr David Vincent, made an application to the Registrar of the Magistrates' Court for the issue of a warrant to arrest in respect of Mr Guss. He filed supporting affidavit material. He also signed and filed three single-page documents, each headed "Continuation of Charges". Each page set out a charge against Mr Guss. They were in the same form as each other except that each related to a different tax year as indicated above.

11 On the same day the Registrar gave to Mr Vincent an eight-page bundle of documents.

12 The first document was a single page headed "Charge and Warrant to Arrest" signed at the bottom by the Registrar and endorsed as having been "issued" by her on 19 July 2013. Unfortunately, the template used for this document was out of date. It recited that it was Form 7, Magistrates' Court Act 1989. That form had been revoked some years earlier. A new form of "Charge-sheet and Warrant to Arrest" was prescribed by r 11 of the Magistrates' Court Criminal Procedure Rules 2009, as Form 5. However, the new form is very similar to the old. Both forms envisage that, when completed, the document or a copy will be supplied to the accused. Both contain endorsements addressed to the accused, including a statement that he or she has been charged with an offence and an exhortation to read on to see what he or she must do. Both forms include, towards the top, a section providing for details of the charge to be set out. In the old form, which was used in this case, express provision was made for the accused to be told whether there were more charges. In that event, the document advised the accused to "see 'Continuation of charges' attached". In the present case, opposite the item "What is the Charge? (Description of the Offence)", the following was typed:

SUMMARY OF CHARGE(S)

FAILURE TO COMPLY WITH A REQUIREMENT OF THE DEPUTY COMMISSIONER OF TAXATION TO DULY FURNISH A TAXATION RETURN.

(Refer to continuation of charges)

The bottom half of the first document contains the warrant to arrest. The form and the language of the warrant is relevantly the same as between the old and the new form.

13 It may be doubted whether it was appropriate for the Magistrates' Court Criminal Procedure Rules 2009 to prescribe a combined form of charge-sheet and warrant to arrest. Sections 5, 6 , 12 and 13 of the CPA seem to envisage that each charge-sheet will be a stand-alone document.[1] This question was the subject of brief discussion during the oral hearings before me, but nothing turns on it. The plaintiff did not submit to the Magistrate that there was any defect in the documentation that was put before, or issued by, the Registrar of the Magistrates' Court. He did not submit to the Magistrate that the criminal proceeding had not been duly commenced. Nor did the plaintiff seek to amend his originating motion or otherwise seek to raise any such allegation in this proceeding.

14 Returning to the events of 19 July 2013, the next three pages given by the Registrar to Mr Vincent were copies of each of the three pages headed "Continuation of charges", each having been signed by the Registrar and thus endorsed as having been filed on 19 July 2013.

15 The first four pages, when given to Mr Vincent, were accompanied by another four pages, being:[2]

• Form 8 Rule 17 of the Magistrates' Court Criminal Procedure Rules 2009;

• Form 6 Rule 12 of the Magistrates' Court Criminal Procedure Rules 2009; and

• a document headed "WHAT TO DO WHEN YOU GET A SUMMONS".

16 Form 8, as prescribed by r 17, is headed "PRE-HEARING DISCLOSURE NOTICE FOR MATTERS TO BE DETERMINED SUMMARILY". It is the prescribed form of notice pursuant to s 13(b)(ii) of the CPA.

17 Form 6 r 12 is headed "DO NOT IGNORE THIS NOTICE". It is the prescribed form of notice under ss 13(b)(iii) and 13(b)(iv). In short, it is a notice advising the accused to seek legal advice and that the accused may be eligible for legal aid and how to contact Victoria Legal Aid. It is required to be published in numerous languages. Both Form 8 and Form 6 were prepared in due form in this case. The further document headed "WHAT TO DO WHEN YOU GET A SUMMONS" was not a prescribed form nor was it otherwise required to be prepared.

18 In his affidavit material before this Court, Mr Vincent describes the two prescribed forms and the further document as, together, "the extra information".

19 On 22 July 2013, copies of the "Charge and Warrant to Arrest" document and the "Continuation of charges" documents were faxed to the Australian Federal Police at Tullamarine Airport, together with a bail form.

20 On 24 July 2013, Mr Vincent delivered copies of those documents and of the "extra information" to the Victoria Police with a request that the warrant be executed and that Mr Guss be bailed on the conditions detailed in a covering letter.[3]

21 On 17 October 2013, Mr Vincent was advised that the warrant to arrest had been executed on Mr Guss at Tullamarine Airport, and that Mr Guss had been bailed on his own undertaking to appear at the Magistrates' Court of Victoria at Melbourne on 31 October 2013. Mr Vincent presumed that the extra information had also been served on Mr Guss.

22 On 31 October 2013, Mr Vincent appeared on behalf of the Commissioner before Magistrate Lambden to prosecute the charges. Mr Antony Guss attended in response to his bail and was represented by his father, Mr Joseph Guss, who is a qualified and experienced legal practitioner. The plaintiff himself is an international business man who, although an Australian citizen, has spent much time overseas in recent years, especially in Dubai and China.

23 There was limited time available to deal with the matter on 31 October 2013. However, Mr Guss (senior) indicated that his client appeared under protest. The basis of the protest was said to be that there had been a breach of s 13 of the CPA in that, at the time of the plaintiff's arrest at Tullamarine Airport on 17 October 2013, the arresting officers had not provided the plaintiff with a copy of the warrant to arrest or any other documents except the plaintiff's bail undertaking and the three "Continuation of charges" pages. The matter was adjourned for further hearing on 8 November 2013. The plaintiff's bail was extended to that day.

24 At court on the morning of 8 November 2013, Mr Vincent handed to Mr Guss (senior) a bundle of documents. It has been said on behalf of the plaintiff from time to time that Mr Guss (senior) had previously requested a copy of the "preliminary brief" pursuant to s 35 of the CPA and that the bundle of documents handed to him on 8 November 2013 represented no more than compliance with that request. Mr Vincent has denied that there was any such request or that the documents were handed over as the preliminary brief. Rather, he says, his intention was to provide the documents which had accidentally been omitted when the warrant was executed at Tullamarine Airport on 17 October 2013. In any event, it is common ground that there were included amongst the bundle of documents handed over that morning all of the documents which Mr Vincent intended to have provided to the plaintiff at the time of execution of the warrant, that is to say, all of the documents detailed above. It is also clear that, before the Magistrate, Mr Guss (senior) accepted that, had all of these documents been provided at the time of the execution of the warrant, his client would have had no cause for complaint under s 13 of the CPA.

25 On 8 November 2013 the plaintiff again attended in accordance with his undertaking of bail. Again, Mr Guss (senior) announced that the plaintiff appeared under protest. Evidence was adduced by the plaintiff to the effect that the only documents he had been provided with at the time of his arrest were the continuation of charges documents and the undertaking of bail. Magistrate Lambden indicated that, as this evidence was uncontradicted, she was going to accept it.

26 Mr Guss (senior) and Mr Vincent then put their respective arguments to Magistrate Lambden as to the legal consequences, if any, of the acknowledged breach of s 13. As indicated above, the argument put by Mr Guss (senior) was short and simple. He relied heavily on the use of the word "must" in s 13.[4] He repeatedly described s 13 as mandatory. He contended that, as a result of the breach, the Magistrates' Court had no jurisdiction to proceed. He submitted that the only course available was to dismiss the charges.

27 Mr Vincent, on the other hand, denied that the breach had any such legal consequences. He pointed out that the plaintiff was physically present in court and could be dealt with on that basis alone. He submitted that there had been no prejudice to the plaintiff because the charges were clear and because he had availed himself of legal representation.

28 Neither Mr Guss (senior) nor Mr Vincent cited any authority to Magistrate Lambden. Her Honour reserved her decision until 2 December 2013.

29 On 2 December 2013 Magistrate Lambden duly delivered a detailed oral ruling. A transcript is included in the material before me. After dealing with the facts and the submissions of Mr Guss (senior) and Mr Vincent, Magistrate Lambden said:

I have considered all matters put to me in submissions, together with the relevant sections in the Act and relevant portions of the Magistrates' Court Criminal Procedure Rules. I have read the second reading speech for this legislation and the statement of compatibility for the Criminal Procedure Bill; also the Criminal Procedure Act 2009 Legislative Guide published by the Department of Justice.

First I will consider the issue of service of the charges themselves. It is clear from the accused's evidence and the documents he produced to the Court that he received a complete copy of each of the three charges. He was left in no doubt as to what was alleged against him. Section 6 of the Act deals with the commencement of a criminal proceeding in the Magistrates' Court. Subsection (1)(a) states that one way by which a criminal proceeding can be commenced is by filing a charge sheet containing a charge with the registrar of the Magistrates' Court.

Looking then at section 12 of that Act and subsection (1) and summarising that to what is relevant for these proceedings - it says that on the filing of a charge sheet under section 6, an application may be made to a registrar of the Magistrates' Court for the issue of, an either - in (1)(a) a summons or - what is relevant here - (b) a warrant to arrest in order to compel the attendance of the accused. Accordingly, it's clear that the warrant to arrest was sought after the charges were filed.

In my view this lends supports to Mr Vincent's submission that the first page of the charge and warrant to arrest is not part of the charges themselves. However, I also take the point made by Mr Guss that there are words printed near the top of that first page, that is, the page headed Charge and Warrant to Arrest, which are directed to the accused person to whom the charges relate, and that supports his contention that the page was intended to have been served on the accused.

The second point to consider is the failure to serve the notice set out in form 8 of the Rules. Now, in relation to those points - so the service of the charge and warrant, the service of the notice - the language used by section 13 of the Act clearly states - and again I summarise it to what is relevant - a warrant to arrest issued under section 12 on execution on the accused must be accompanied by (a) a copy of the charge sheet and (b) a notice in the form prescribed by the court. I read that provision as requiring a service of the warrant to arrest, a copy of the charge sheet and the notice - which is form 8 in the Rules - on the accused at the time the warrant is executed.

The warrant and the form 8 document were not served on the accused here so the question remains was that omission by the police fatal to the charges. The statement of compatibility tabled with respect to the Criminal Procedure Bill identified what is now section 13 of the Act as one of a number of sections which would "provide for appropriate levels of information to be given". Under section 25, subsection (2) of the Charter of Human Rights and Responsibilities Act of 2006, "a person charged with a criminal offence is entitled without discrimination to the following guarantees". A number of matters are then listed.

The statement of compatibility for the Criminal Procedure Bill referred specifically to section 25, subsection (2)(a) of the Charter, stating that, "a person charged with an offence is entitled to be informed of the nature and cause of the charge in detail and promptly. The purpose of this section is to ensure that the accused is told in a timely manner what he or she is charged with and why". I have already found that the accused was provided with copies of the three charges when the warrant was executed, and therefore that information was provided promptly.

No authorities were put forward by either party about any of the issues raised during submissions and I have been unable to find any authorities directly on point. I have read a number of Supreme Court decisions made in relation to a variety of issues about service under the previous legislation. In this case, the act requires certain things be provided at the time the warrant was executed, not all of which were provided to him. But the Act does not go on to indicate whether failure to comply in full with those requirements would be fatal to the proceedings.

Mr Guss raised the defect in service on both occasions this matter has been before me. At no stage has the accused waived the defect in service of which he has complained. However, it was always clear to him what charges he was facing and when and where he was required to appear at court. Details of the prosecuting agency and the contact details of the relevant person to contact there if need be were included on the charges.

I was also told on the last occasion that Mr Vincent had that morning, given the documents that had been required to be served to Mr Guss. So all documents which were required to be served had by then been provided. While it is far from satisfactory that section 13 of the Act was not originally complied with in its entirety, the accused received all three charges and details of the prosecuting agency, details of when and where to be at court, and the merits of those charges have not yet been heard by the court. He has since been provided with the additional information material. On the face of it he has suffered no prejudice in terms of his being able to be prepared for a hearing into these matters. I also note the decision of the then Hayne J of the Supreme Court of Victoria, in Nitz, ... and Evans ... at 19 MVR at p 55, which dealt with a defect in service on a defendant. While the facts and legislation differ from the matter before me, there nonetheless was a defect in service in terms of whether the defendant received the correct documentation. The magistrate hearing the charge proceeded ex parte, even though the accused had continued to complain of the defect in service. His Honour Hayne J held that the magistrate should not have gone on to hear and determine the charge until the defendant had been properly served as the Act required.

That decision, in my view, provides support for my decision here that the accused matter should proceed given that he has now been provided with all required documentation. The application to dismiss the charges is refused.

30 Mr Guss (senior) appeared on behalf of the plaintiff before me. He had filed written submissions in support of the originating motion. He reiterated the arguments he had put before Magistrate Lambden. He submitted that her Honour had erred in her reliance on Nitz v Evans.[5] While acknowledging that Nitz v Evans and also Sinclair v Magistrates' Court of Victoria[6] were cases relating to provisions of the Magistrates' Court Act 1989 concerning the issue and service of summonses, he submitted they were authorities that supported the proposition that failure to comply with s 13 of the CPA meant that the charges had to be dismissed. He noted that in Nitz, Hayne J had observed that s 34 of the Magistrates' Court Act 1989 (which imposed service requirements in respect of summonses) was cast in mandatory terms.[7] He noted that in Sinclair Warren J (as her Honour then was), after referring to Nitz, had held that no further hearing could take place in the Magistrates' Court because the informant had failed to comply with the "mandatory procedural provisions" of the Magistrates' Court Act 1989 in relation to the extension of the mention date specified in the summons and because the summons had since lapsed.

31 Counsel also referred to the judgment of Nathan J in Kerr v Hannon[8] in which his Honour had held that where, under the Magistrates (Summary Proceedings) Act 1975, an information must be laid within a specified time from the date of the offence, the information must contain that date or other particulars which would enable the defendant to ascertain the date. In the event of an information failing to do so, an amendment to insert the missing particulars made after the expiration of the time limit could not be permitted.

32 Mr Guss (senior) also referred to some old cases in the Supreme Court of Victoria under landlord and tenant legislation, namely Wood v Fetherston,[9] Andrews v Daish[10] and Olcorn v Hooton.[11]

33 Ms Sharp of counsel appeared on behalf of the Commissioner before me.

34 Ms Sharp did not concede that the Magistrate had been correct to interpret s 13 as requiring that a copy of the warrant to arrest be included amongst the material to be provided to the accused upon the execution of the warrant. However, she was content to proceed on the basis that that was in fact a requirement of s 13 and I am content to proceed on the same basis.

35 I would also accept Ms Sharp's submission that this case does not involve any attack on the validity of the arrest or the undertaking of bail. On the other hand, the problems relating to the form of, and the non-provision of a copy of, the "Charge and Warrant to Arrest" document are such that I would also proceed on the basis that the breach or breaches of s 13 extended beyond sub-s (b) thereof and included a breach of the words of the chapeau to that section and a breach of sub-s (a) thereof.

36 Nevertheless, I agree with Ms Sharp that the plaintiff's submissions are misconceived in that they amount, in substance, to no more than a conclusory assertion that the provisions of s 13 are mandatory. The plaintiff's submissions do not grapple appropriately with the governing principles laid down by the High Court in Project Blue Sky Inc v Australian Broadcasting Authority.[12] In that case, the plurality said:[13]

An act done in breach of a condition regulating the exercise of a statutory power is not necessarily invalid and of no effect. Whether it is depends upon whether there can be discerned a legislative purpose to invalidate any act that fails to comply with the condition. The existence of the purpose is ascertained by reference to the language of the statute, its subject matter and objects, and the consequences for the parties of holding void every act done in breach of the condition.

... a court, determining the validity of an act done in breach of a statutory provision, may easily focus on the wrong factors if it asks itself whether compliance with the provision is mandatory or directory and, if directory, whether there has been substantial compliance with the provision. A better test for determining the issue of validity is to ask whether it was a purpose of the legislation that an act done in breach of the provision should be invalid. This has been the preferred approach of courts in this country in recent years, particularly in New South Wales. In determining the question of purpose, regard must be had to "the language of the relevant provision and the scope and object of the whole statute".

38 Section 13 of the CPA does not on its face impose any conditions or qualifications on the jurisdiction or power of a court to hear and determine a criminal charge. It may, however, have significant work to do if it is capable of bearing on the validity of the service of a summons on an accused, because a court generally cannot proceed against an accused who is not physically before it, unless the accused has been properly served with the process of the Court. On the other hand, there seems to be less scope for s 13 to have relevant operation with respect to the hearing and determination of charges where the accused is physically before the Court, even if the accused has been brought there by irregular means. Generally speaking, illegality attaching to the process by which the accused comes before the Court does not have any effect on the jurisdiction of the Court to deal with the matter.[15] This principle is well exemplified in the extradition cases.[16] In Truong v R,[17] Kirby J observed that whatever the prerequisites to the exercise of the power to stay proceedings for abuse of process, it is clearly established by the cases that it is not available to cure some "venial irregularity". His Honour continued (omitting footnotes):

Thus, where a "technical" breach of extradition law and procedure is later found to have occurred, in circumstances where the relevant officials were determined to have held the affirmative belief that they were acting appropriately, a stay has been refused, rightly in my view. At the very least, therefore, the departure complained of must be very serious, such that in the circumstances, for the court to continue with the proceedings would offend the very integrity and functions of the court, as such.

39 Likewise, in Onus v Sealey[18] Kaye J said that statutory provisions such as the former s 34 of the Magistrates' Court 1989 (which was referred to in Nitz v Evans) which require the service of a summons more than a prescribed time before its return, "do not exclude the operation of the principle that, however a person has been brought before a court, that person is liable to answer any charge or information then and there brought against him". As Kaye J further observed, the operation of that principle is subject to the right of the accused person to ask for and obtain an adjournment if the accused is taken by surprise.[19]

40 I agree with Ms Sharp's submission that the underlying purpose of s 13 of the CPA is to ensure procedural fairness. As Ms Sharp points out, in Murdoch v Smith[20] I observed in relation to similar provisions in the Magistrates' Court Act 1989 that (omitting footnotes):

Guss fortifies in another way the view to which I have come on this aspect of the present case. Osborn J points out that the underlying purpose of the provisions in question is merely to ensure procedural fairness. Similarly, in Plenty v Dillon, Mason CJ, Brennan and Toohey JJ said:

A summons to appear before a court of summary jurisdiction to answer an information or complaint does not itself compel a defendant to appear. Its primary purpose is to ensure that natural justice is accorded to a defendant by giving the defendant notice of the subject of the complaint and an opportunity to be heard ... The essential nature of a summons as the means of according natural justice has been established by long practice.

41 As Ms Sharp further submits, a warrant ensures that an accused attends the court, and the purpose of requiring the specified material to be provided is to ensure that an accused is accorded sufficient procedural fairness. In the present case, Magistrate Lambden found as a fact that the plaintiff suffered no prejudice in terms of his preparation for a hearing into the charges. There has been no challenge to that finding of fact. As was discussed during the hearing before me, it is possible that in other cases an accused will not have the sophistication or resourcefulness of the plaintiff and that a failure to comply with the requirements of s 13 of the CPA will have a more detrimental effect. However, in my view, even in such a case, the Court would not be deprived of jurisdiction or power to hear and determine the relevant charges. The Court would be required to do what it could by way of adjournment or exclusion of evidence or otherwise to ensure a fair hearing and determination of the charges.

42 Critically, the plaintiff's submissions fail to recognise that the CPA relates to and governs procedure in all criminal proceedings in Victoria. It is not confined to summary matters or to indictable matters that may be heard and determined summarily. The consequences of accepting the plaintiff's argument would be potentially disastrous. It would mean that any non-trivial slip on the part of the authorities at the time of service of a summons or execution of a first instance warrant to arrest would deprive the State of the capacity to prosecute the accused, regardless of the seriousness of the offence. For example, that would be the situation with respect to a murder charge or a very serious drug trafficking charge. To reiterate, the plaintiff's argument is that in every case it will be too late to cure any non-trivial breach of s 13. The argument is completely unacceptable.

43 I note that the charges against the plaintiff were Commonwealth charges. Therefore, although the charges were to be heard summarily, the 12 month time limit provided for in s 7 of the CPA had no application. It was displaced by s 8ZB of the Taxation Administration Act 1953 (Cth). Many of the cases which were relied upon by the plaintiff were heavily influenced by the expiry of the 12 month time limit contained in provisions corresponding to s 7 of the CPA.

44 For the reasons given by Magistrate Lambden, I agree that Nitz v Evans[21] is a case which favours the Commissioner, not the plaintiff. In that case, it appears that Mr Nitz did not at any stage attend physically before the Court. The summons not having been properly served, the Court was deprived of power to deal with Mr Nitz by virtue of s 41 of the Magistrates' Court Act 1989, as Hayne J explained. The situation could not be rectified because the time for any extension of the date for return of the summons had long since passed. That is why the relevant charge was dismissed. The case is thus distinguishable on numerous grounds from the present case.

45 Likewise, both Sinclair and Kerr v Hannon turned on the existence of defects that, it was held, could not be cured after the expiry of the relevant limitation periods.

46 As Ms Sharp submits, the three landlord and tenant cases are also distinguishable. In Wood v Fetherston[22] there was an objection to a notice of intention to proceed to recover possession. The notice was issued before the tenancy had come to an end. There was no power to issue it before the tenancy had come to an end. The notice was therefore defective. Accordingly, it could not be relied on to recover possession. The situation here is very different. The jurisdiction of the Magistrates' Court is founded on the filing of charge-sheets pursuant to ss 5 and 6 of the CPA. As I have already mentioned, there is no challenge to the validity of the proceeding as commenced, notwithstanding the charges were set out in documents headed "Continuation of charges".

47 Similarly, in Olcorn v Hooton[23] a notice to quit had not been signed by the landlord or his agent, a requirement which was held to be "not a matter of form". Again, in the present case, there is no difficulty about the filing of the charges.

48 Andrews v Daish[24] concerned the jurisdiction of the Court to hear an application based on a notice of application that was served on a person who was not the respondent to the notice, but someone who was present at the relevant premises. In effect, it was not proved that the person on whom the notice was served was "apparently residing" at the premises. Barry J observed that if service was necessary to confer jurisdiction, then strict compliance with the statute was required. In Andrews, the Court was found to lack jurisdiction because the notice had not been properly served on the correct person. The requirement to serve the notice on the person named or a person apparently residing at the premises was imposed so that the proper person was notified of the application. As Ms Sharp submits, that case can be distinguished. Here, documents setting out the criminal charges were served on the plaintiff personally. As Magistrate Lambden found:

However, it was always clear to him what charges he was facing and when and where he was required to appear at court. Details of the prosecuting agency and the contact details of the relevant person to contact there if need be were included on the charges.

49 In MAC v R,[25] in relation to a complaint based on non-compliance with a different provision of the CPA, Nettle JA (with whom Bongiorno JA agreed) said:[26]

Furthermore, errors and omissions in compliance with statutory procedural requirements are bound to occur; especially when legislation is complex, the volume of business is high and resources are limited. It is, therefore, not a question of the court condoning prosecutorial incompetence for it to recognise the reality that errors can and do occur and, so far as possible consistently with the interests of justice, to do what can be done to overcome the problems thereby created. So to do is no more than to give effect to the statutory purpose of the legislation in the reality of the context in which it is required to operate.

As Rush J subsequently observed in yet another case relating to the CPA, DPP v Bryar,[27] Nettle JA had in MAC underscored this approach by referring to the judgment of Kirby J in Emanuele v Australian Securities Commission:[28]

... Courts today are less patient with meritless technicalities. They recognise the inconvenience that can attend an overly strict requirement of conformity to procedural preconditions. In the morass of modern legislation, it is easy enough, even for skilled and diligent legal practitioners (still more lay persons who must conform to the law) to slip in complying with statutory requirements.

Thus, a flexible approach to statutory preconditions is to be encouraged.

In my view, these several observations, having been expressed in relation to the CPA itself, strongly support the conclusion that the plaintiff's challenges to the decisions in question must fail.

50 For these reasons, this proceeding will be dismissed.

51 I will hear the parties on the question of costs.

[1] The same observation may be made in relation to the prescription by r 11(c) of a combined form of charge-sheet and summons and by r 11(d) of a combined form of charge-sheet and summons (corporate accused).

[2] See affidavit of David Vincent sworn 11 February 2014, Appeal Book p 31.

[4] But see Brygel v Stewart-Thornton [1992] VicRp 70; [1992] 2 VR 387, esp 397-398; Halwood Corporation Ltd v Roads Corporation [1998] 2 VR 439, 445-477; Ryan v Grange at Wodonga Ltd [2015] VSCA 17, [21], [32]-[36]; Lawrence; Ex parte Westpork Pty Ltd (2012) 226 A Crim R 393; [2012] WASC 487, [20]ff.

[5] (1993) 19 MVR 55.

[6] [1998] VSC 170.

[7] (1993) 19 MVR 55, 58.

[8] [1992] VicRp 3; (1992) 1 VR 43.

[9] [1902] VicLawRp 87; (1901) 27 VLR 492.

[10] (1875) 1 VLR 188.

[11] [1949] VicLawRp 18; [1949] VLR 101.

[12] [1998] HCA 28; (1998) 194 CLR 355.

[15] R v Hughes (1879) 4 QBD 614, 622; Director of Public Prosecutions v Carter; Director of Public Prosecutions v Kenny [2015] IESC 20 (Supreme Court of Ireland), [32]-[36].

[16] See Perrin v Jackson (2008) WASC 77, [70]-[75] and cases there cited.

[17] [2004] HCA 10; (2004) 223 CLR 122, 172 [136].

[18] (2004) 149 A Crim R 277; [2004] VSC 396, [25]. His Honour cited R v Hughes, above n 14; Kingston Tyre Agency Pty Ltd v Blackmore [1970] VicRp 81; [1970] VR 625, 638.

[19] [2004] VSC 396, [25] citing McManamny v Fleming (1889) 15 VLR 377.

[20] [2006] VSC 468; (2006) 15 VR 186, 202 [94].

[21] (1993) 19 MVR 55.

[22] [1902] VicLawRp 87; (1901) 27 VLR 492.

[23] [1949] VicLawRp 18; [1949] VLR 101.

[24] (1875) 1 VLR 188.

[25] (2011) 34 VR 193.

[27] [2014] VSC 224, [71]-[73].

[28] [1997] HCA 20; (1997) 188 CLR 114.